Supreme Court appears divided on contribution limits

Oct. 8, 2013
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Shaun McCutcheon, a wealthy Alabama electrical engineer and Republican activist, wants the Supreme Court to toss out the rules that bar an individual from donating more than $123,200 to federal candidates and political parties during a two-year cycle. / H. Darr Beiser, USA TODAY

by Fredreka Schouten and Richard Wolf, USA TODAY

by Fredreka Schouten and Richard Wolf, USA TODAY

WASHINGTON - In a case that could give the wealthy a bigger role in American elections, the Supreme Court seemed open Tuesday to reconsidering a long-standing cap on what individuals can contribute directly to federal candidates.

Several of the court's conservative justices called the overall limits on contributions to candidates and parties an unfair restriction on free speech, while the more liberal justices said eliminating them would lead to corruption.

That left Chief Justice John Roberts searching for a middle ground. He acknowledged that lifting the cap could let a donor give as much as $3.6 million overall, but he lamented that rules prohibit giving $2,600 each to more than nine candidates in primary and general elections.

"It seems to me a very direct restriction on much smaller contributions," Roberts said of the system.

One possible solution for the court would be to jettison the aggregate contribution limits of $48,600 to all federal candidates but leave intact the $74,600 aggregate cap to party committees, which are seen as more likely to bundle and then redistribute donations to the most vulnerable candidates.

"These aggregate limits might not all rise or fall together," said Associate Justice Samuel Alito, considered another potential swing vote.

Associate Justice Stephen Breyer also raised the possibility of sending the case back to federal district court for extensive fact-finding. Both he and Associate Justice Sonia Sotomayor suggested there was not a sufficient record on which to base a decision. That could offer a potential, though unlikely, compromise.

President Obama weighed in on the case during a White House news conference Tuesday, saying the elimination of caps would shut ordinary Americans out of the process. He said the court's Citizens United decision has contributed to Washington's budget stalemate by allowing deep-pocketed "ideological extremists" a bigger voice in politics.

The new case, brought by the Republican National Committee and Alabama businessman Shaun McCutcheon, challenges the portion of federal law that caps at $123,200 the total amount than an individual can give to all federal candidates, parties and political action committees in a two-year election cycle

McCutcheon a Republican activist, is not challenging the base limits that prevent him from donating more than $2,600 directly to a federal candidate but says the overall limit impinges on his First Amendment rights of speech and association.

"This is about free speech and putting ideas in the marketplace," McCutcheon said after sitting through the free-swinging oral argument in the marble courtroom's second row.

Associate Justice Elena Kagan repeatedly raised hypothetical situations in which wealthy donors would be able to give as much as $800,000 to a single candidate, as long as it was funneled through other committees. In that way, she said, a donor could give heavily to the closest races, and party leaders would know where the money came from.

"Are you suggesting that that party and the members of that party are not going to owe me anything?" she asked Bobby Burchfield, the lawyer representing Senate Republican leader Mitch McConnell of Kentucky, who has argued that all contribution limits should be eliminated.

"Gratitude and influence are not considered to be quid-pro-quo corruption," Burchfield responded. And Associate Justice Antonin Scalia even suggested that the $3.6 million that donors would be able to give to all sources is not "a heck of a lot of money, spread throughout the country."

But Alito said the intricate funneling schemes conjured up by others are not realistic. "You have to get it from the person who wants to corrupt to the person who is going to be corrupted," he said - to which Solicitor General Donald Verrilli, arguing in defense of the aggregate limits, said, "A lot of this can be done with winks and nods."

Roberts seemed more concerned with the restrictions that aggregate limits place on donors who want to spread their money around.

"The concern is you have somebody who is very interested, say, in environmental regulation, and very interested in gun control," the chief justice said. "Is he going to express his belief in environmental regulation by donating to more than nine people there? Or is he going to choose the gun control issue?"

Supporters of the restrictions on political giving say the cumulative limits protect against political corruption in a system already awash in money from super PACs and other outside groups. They fear a broad ruling by the court could erase the distinction between money given directly to candidates and money spent independently by individuals and outside groups that the court made in its landmark 1976 Buckley v. Valeo ruling and has upheld ever since.

McCutcheon's lawyers said he can win without eliminating the $2,600 base limits per candidate. But McConnell, a leading opponent of campaign regulations who was in court for Tuesday's argument, has urged the justices to go further and treat all contribution limits as they do spending limits. If they agree, that could lay the groundwork for a future case aimed at allowing unlimited donations to individual candidates.

Justices did not raise questions about those base limits Tuesday, appearing to lower the chances for a broader assault on underlying limits.

Conservative justices questioned why allowing wealthy contributors to donate larger amounts directly to candidates and parties is worse than the unlimited amounts flowing now to super PACs to aid a specific presidential or congressional candidate. Scalia said it was "fanciful" to think an incumbent would feel a "greater sense of gratitude" to a campaign contributor than a PAC spending unlimited amounts to support his re-election.

Campaign-finance watchdogs, who sounded alarms about the case for months, gathered on the court's marble steps Tuesday morning to protest. They say striking down the limits would risk separate contribution caps in at least a dozen states, from Arizona to Wyoming.

If the justices go along with McCutcheon, they will provide "license for influence-seeking donors and influence-selling federal officeholders to corrupt our political system and our democracy," said Fred Wertheimer, president of Democracy 21, one of the groups asking the court to rule against McCutcheon.